M. Mohamed Ibrahim Sahib vs Bazhul Asu Habu

Govinda Menon, J.—Having rightly and correctly held that there are no materials for setting aside the order of discharge u/s 307, Penal

Code the learned Sessions Judge, in my opinion, was not justified in ordering a farther enquiry with regard to the alleged offence u/s 323, Penal

Code. The learned Judge holds that the order of the Magistrate implies a discharge with regard to Section 323. If that is so, simply because the

Magistrate has not used words ""the accused is discharged u/s 323"" the learned Judge had no jurisdiction to set aside the order of discharge.

Moreover, the learned Judge himself concedes that the Magistrate has disbelieved the witnesses and nothing contra has been said against that

procedure. I do not think that it is open to the learned Judge to bisect the order of discharge into two component parts, confirm one part and set

aside the other. The order of discharge must be taken and read as a whole and as it appears that the Magistrate did not accept the testimony of the

witnesses, it necessarily follows that that non-acceptance would amount to a disbelief of the evidence regarding the offence u/s 323 as well.

I would therefore set aside the order of the learned Judge directing further enquiry and confirm the order of discharge passed by the Court of

the first instance.